Veterinary telemedicine is a sticky legal wicket

August 17, 2019
Christopher J. Allen, DVM, JD

Christopher J. Allen, DVM, JD is president of the Associates in Veterinary Law P.C., which provides legal and consulting services exclusively to veterinarians. He can be reached via e-mail at info@veterinarylaw.com. Dr. Allen serves on dvm360 magazine's Editorial Advisory Board.

dvm360, dvm360 October 2019, Volume 50, Issue 10

Are you covered by state law and your malpractice insurance when it comes to asking for or giving veterinary telemedicine advice?

When I started my research for this month's column, I expected that useful, comprehensive information on veterinary telemedicine would be fairly simple and straightforward. Instead, it actually turned out to be something of a safari through a confusing jungle of legal fact, opinion and outright speculation.

Tired of hearing about telemedicine?

Come on. It's past time to try it, right?

Nonetheless, the rapid emergence of veterinary telemedicine and its related jurisprudence is an important story. The technology expands the availability and reach of veterinary specialists and will constitute an increasingly vital tool for generalist and critical care practitioners indefinitely into the future. So, let's take a look at telemedicine in our profession and the numerous legal questions it brings with it.

Isn't it better to talk to the experts?

To the casual observer, the benefits of using the internet for the best possible veterinary medical outcomes may seem obvious. That view essentially amounts to the fairly simple notion that “the more educated input available in the treatment of the patient, the better.” As clinicians, we use books and journal articles to help guide the way we handle medical and surgical cases. Is it any different getting the chance to speak or teleconference with the expert who wrote the article or edited the textbook we used to look for guidance?

But as with so many apparent panaceas, veterinary telemedicine is more complex and raises more questions than we might think. The reality is that remote human interaction in handling a veterinary medical case is not the same as reading an expert's opinion in a book or journal. It isn't the same with respect to its impact on the patient's treatment, and it's certainly not the same in the eyes of the courts and regulatory authorities.

The mercurial definition of ‘practicing telemedicine'

The internet's appearance in human and animal medicine has outpaced the ability of regulators, legislators and the insurance industry to adjust and adapt. Web-enabled veterinary care has such exciting potential, but at the same time presents a number of difficult-to-answer questions. One of the biggest is, “What, legally, is the telemedicine consultant or clinician actually doing?

Today, practitioners of veterinary telemedicine fall into two general groups. First, there's the practicing veterinarian who connects via the internet directly with a client (pet owner) to provide medical advice and possibly prescriptions, and to give treatment suggestions directly to that client-for a fee. The second type of telemedicine veterinarian is the clinician's consultant, who uses the web to provide diagnostic and therapeutic input to the on-site veterinary caregiver-again, for a fee.

Each of these groups of “teledoctors” has its own set of legal concerns spanning a number of key issues. Broadly, these concerns fall into three general categories: 1) malpractice liability, 2) licensing and 3) criminal culpability.

Let's look at the remote teledoctors.

Do you need to be face-to-face to establish a VCPR?

According to AVMA guidelines, veterinarians who treat patients are expected to have a veterinarian-client-patient relationship (VCPR) to practice veterinary medicine on an owned animal. Traditional veterinary office appointments make this very simple, as the client seeking help meets the practitioner and presents the pet for examination and treatment. By logical extension, we might assume that teledoctors would also be required to establish a VCPR. But does this require at least an initial face-to-face meeting with the doctor, the patient and the client to legally set the stage for subsequent cyber-visits?

Some might argue that a 30-minute telemedicine evaluation could actually be more thorough and complete than a quick in-person visit that presumably establishes a legal VCPR. If that's true, the next question is whether a legal requirement for an on-site meeting is old-fashioned. Government regulators and veterinary boards, with advice from veterinary professional organizations, will be responsible for deciding this.

A clear decision in each state on this point is vital to the veterinary malpractice bar. Under current law, lack of a traditional VCPR with an in-person relationship amounts to potential evidence that a veterinarian fell below the minimum standard of care. Consequently, the absence of legal guidance on when and how the internet may be used by clinicians is virtually certain to have a chilling effect on the use of telemedicine and other web-based veterinary modalities in private practice.

 

Does this cross state lines?

It's clear in virtually all jurisdictions across the country that practicing veterinary medicine in a place where the practitioner is not licensed is illegal and can result in sanctions in the place where the unlicensed practice occurs and often in the state where the veterinarian is licensed.

Consider the following example, ignoring for a moment the negligence issue: You're a generalist in a remote area of Nevada. A dog arrives at your clinic with a serious eye condition that you don't feel entirely comfortable treating. You need an ophthalmologist's opinion, but it's 6 p.m. on a Sunday. Via a service, you get access to a board-certified ophthalmologist licensed only in Texas but nonetheless anxious to help you with your case. You engage the specialist, but the case goes badly anyway. The client is livid and threatens to pursue every legal channel, promising to make you and the specialist suffer.

Here are the conundrums the Nevada veterinarian and the Texas teledoctor could face:

> If the specialist's advice was wrong, does the treating veterinarian take responsibility for the advice of an “unlicensed” veterinarian-one who never proved his competency through testing in Nevada? If so, does the treating doctor's malpractice insurance coverage extend to this situation?

> If the specialist's advice was right, is he still liable for directing the care of a patient in that patient's state (where he is not and never has been licensed)? Does the Texas teledoctor's insurance cover allegedly illegal practice in a location where he's not licensed?

> Regardless of the medical advice, will the ophthalmologist need to answer to the Texas veterinary medical board due to the fact that one of its licensees practiced medicine in violation of the law in Nevada prohibiting such practice? Does the Texas doctor's license defense insurance cover acts outside the state of Texas?

What about long-distance specialists?

For many years, stretching back to the days when CardioPet started interpreting ECGs over a telephone handset link, off-site veterinary experts have earned a living by connecting with on-site veterinarians to help with cases. So, does the law require these teledoctors to establish a VCPR? The law in many jurisdictions is far from clear. From my perspective, I think it might be better for this type of telemedicine veterinarian not to have such a relationship.

Just consider this: Veterinary telemedicine consultants frequently ply their craft across state lines. A highly acclaimed expert might be evaluating a computer image in College Station, Texas and, based on that, provide case input to a practicing veterinarian in Huntington Station, New York. If that specialist isn't licensed in New York (even with amazing credentials and experience), does her input and advice-for a fee-constitute “unlicensed practice” in the eyes of regulatory authorities in the Empire State?

In the event of a bad outcome and resulting malpractice lawsuit, the primary care veterinarian certainly will be brought in as a defendant. But how will the out-of-state telemedicine consultant figure? Can the teledoctor be brought in as a defendant under the theory that his advice was the proximal cause of the pet's injury at the hands of the on-site doctor? Or would the law see the web consultant's input more as a “living textbook” and the full burden for use of the remote doctoring fall on the on-site practitioner?

A litigator representing the teledoctor might consider any VCPR between his client and the family who owned the unlucky patient to be a liability. For once a VCPR is established, the teledoctor's influence arguably becomes greater or even equal to the one existing with the primary doctor. 

I counsel caution

While regulators gear up to handle the complex questions raised by veterinary telemedicine, I counsel caution on the part of veterinarians. The providers and users of veterinary telemedicine need to discuss with both their legislative liaisons and insurance carriers what boundaries they need to observe. This advice is particularly useful in jurisdictions where unlicensed practice penalties can be severe.

In my state, teledoctors need to know, legally, where they stand: In New York, practicing veterinary medicine without a license is a felony.

Christopher J. Allen, DVM, JD, is president of Associates in Veterinary Law P.C., which provides legal and consulting services exclusively to veterinarians. He can be reached at info@veterinarylaw.com. Dr. Allen serves on dvm360 magazine's Editorial Advisory Board.

download issueDownload Issue : dvm360 October 2019